Professor Gregory McNeal, JD/PhD, is an expert in law and public policy with a focus on security, technology and crime.
His current research projects include a book focused on the investigation and prosecution of national security crimes (under contract with Oxford University Press), a book about targeted killings (grant funded), and a book about the emergent civilian drone market. His law review articles have been published by or are forthcoming in The Georgetown Law Journal (winner of an article of the year award), The Northwestern University Law Review Colloquy, The Washington and Lee Law Review, and The Harvard Journal of Law & Public Policy among others. He is a co-author of the casebook Anti-Terrorism and Criminal Enforcement (with Norman Abrams, 4th Edition Supplement and 5th Edition), co-editor of Saddam On Trial: Understanding and Debating the Iraqi High Tribunal (with Michael Scharf) and is the editor of a forthcoming treatise Cybersecurity and Privacy.
He has testified before Congress about drones, surveillance, and counterterrorism and has also aided members of Congress and their committees in drafting legislation. Previously, he served as assistant director of the Institute for Global Security, served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba, and co-directed a U.S. Department of Justice counterterrorism program. He has consulted with the Department of Defense on a range of issues, including helping to draft a manual aimed at reducing harm to civilians in conflict, and advising on matters related to cybersecurity.
Dr. McNeal has also advised Fortune 500 companies and the defense industry on matters related to drones, privacy, surveillance, and homeland security. Before becoming an attorney he served as an officer in the United States Army. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun, and he has appeared on MSNBC, Fox News Channel, CNN, NPR, NBC Nightly News, BBC, C-SPAN, and other national media outlets as an expert commentator on security, technology and crime. As a Forbes contributor he writes about law and public policy and is one of the nation’s top law professor bloggers based on the Law Prof Blog Traffic Rankings. You can follow him on Twitter @GregoryMcNeal and on Facebook at GregorySMcNeal.

The National Park Service announced today that they are banning the use of drones and model aircraft in all National Parks, subject to a few limited exceptions. According to a policy memorandum released by Jonathan Jarvis, Director of the Park Service, the directive is an interim measure while the park service attempts to properly evaluate drone and other model aircraft uses.

While the policy memorandum has flaws, it is at least more clear than the National Park Service’s prior method of announcing potential fines and jail time through Twitter, Facebook, and website postings. This approach may also be a reasonable first step, assuming the National Park Service opens the regulatory process up to public comment, there exists the possibility that some uses of drones may be allowed in the future.

For example, National Parks may want to allow persons to operate drones for limited uses in designated areas during certain times of the year (as many National Parks previously allowed) or for artistic and cinematic documentation that may serve to portray the park system in a positive light. The Park Service may also want to develop a less onerous permit application process than the one announced in the memorandum, that would allow for scientific studies that do not impact wildlife.

The National Park Service has banned drones and model aircraft in most National Parks (Photo credit: Yosemite National Park Facebook page).

In their announcement, the National Park Service also seems to admit that my arguments in these posts (here, and here) were completely on point, the National Park Service wrote:

Another reason for the required closures is that current NPS regulations do not specifically address launching, landing, or operating unmanned aircraft. The prohibition on operating or using aircraft in 36 CFR 2.17(a)(1) does not apply to unmanned aircraft because the definition of “aircraft” in 36 C.F.R. 1.4 is limited to devices used or intended to be used for human flight.

This looks strikingly similar to what I wrote in this May 5, 2014 post, when I said:

“a device that is used or intended to be used for human flight in the air, including powerless flight.”

That is their definition, it is the law that is on the books (as opposed to made up law in Tweets and press releases). That regulation can be found by any concerned citizen (here it is). If the government wants to fine or imprison people for flying an “aircraft” they can only do so pursuant to the rules they’ve promulgated. Those rules state that aircraft are “used or intended to be used for human flight.”

But what about current model aircraft operations in parks? This is where things become a bit more confusing. The National Park Service in its policy memorandum has decreed that the ban on “unmanned aircraft” includes a ban on drones and model aircraft, specifically:

For the purposes of this Policy Memorandum, the term “unmanned aircraft” means a device that is used or intended to be used for flight in the air without the possibility of direct human intervention from within or on the device, and the associated operational elements and components that are required for the pilot or system operator in command to operate or control the device (such as cameras, sensors, communication links). This term includes all types of devices that meet this definition (e.g. model airplanes, quadcopters, drones0 that are used for any purpose, including for recreation or commerce.

The Park Service creates a carve out for the “limited existing use of model aircraft” but that still doesn’t address every circumstance. Existing permitted uses likely means the parks that currently allow model aircraft flights on model aircraft fields. I compiled a list of those National Parks that allow model aircraft use in at least some parts of the parks, they include: Golden Gate National Recreation Area, Delaware Water Gap, Valley Forge, Gateway National Park, Sleeping Bear Dunes- Michigan National Park, Waterfall Glen Forest Preserve, Mississippi National River Recreation Area (Spring Lake Park Preserve), and Paramount Ranch (Santa Monica Mountains).

While it’s clear that model aircraft could likely continue operation in those places where they’ve been explicitly allowed, what about in other areas where it seems absurd to ban them?

For example, would this paper airplane that can be flown by a phone be banned? What about this $9.50 remote controlled helicopter, would it violate the ban if operated near a camper’s tent by a child? What about this $71 quadcopter if flown over that same tent? How about this $479 quadcopter flown over the same tent? It’s not clear whether any of these uses would be permitted.

This legal hairsplitting matters, under the Park Service’s policy memorandum, the use of remote controlled flying toys is punishable by 6 months in jail or a $5,000 fine. I have interviewed and am aware of multiple persons who have been cited by the National Park Service for flying model aircraft/small drones. Moreover, as Jason Koebler wrote, at least one person was told if he paid the citation it would be a $350 punishment, however if he went to trial to challenge the Park Service’s interpretation, he would face 6 months in jail and a $5,000 fine.

The Park Service’s policy memorandum has added some clarity, but has also created confusion. Children and others using remote controlled toys in parks have to hope that a park ranger wont cite them. The smart move for park visitors is to not bring your remote controlled flying toys to the National Parks (sorry kids). I’m hopeful that as the park service develops new regulations they will make carve outs (perhaps by weight, noise, or manner of use) for smaller systems that are unlikely to disturb others or harm the park.

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I have been skeptical about rushing commercial drone operations into operation prematurely, and have expressed myself on “Forbes” about this matter. In this case, the national parks seem to be taking the “precautionary principle” to absurd lengths. Use of a drone or model airplane to harass or harm animals would no doubt be covered under existing regulations. It is hard to imagine that use of drones for photography or similar purposes would be so destructive that it demands preemptive prohibition. Balloon and helicopter safaris for animal-viewing in East Africa are common and appear to be harmless.

What bugs me most about government policies like this, is they try to make us think and feel that they are allowing us into their parks, as their guests, when In reality, it’s exactly the other way around.

Ya know… I understand fining people for being idiots 5k and/or 6months in Jail is a bit extreme!

If you don’t respect the airspace of comercial aircraft… you spy on someone…If you lose control of your craft and it causes damage/harm… Hell come up with a permit that requires a class… but to just use a blanket ban for responsible people is just another needless regulation and power grab flex power for a make believe problem…

I mean honestly these lands are vast open Beautiful locations that we the taxpayers pay for and have a right to enjoy responsibly. I don’t see how flying a quadcopter over the grand canyon is endangering anyone…

These Aren’t DRONES! as people think of them… they are high tech toys…easily broken and made of plastic!

National Parks Are Vast Places…. if a park wants to have no Fly zones in more populated places where people gather that makes some common sense… But call me crazy public lands are meant to be Public!

Full disclosure…. I own a quadcopter…. And I hoped to beat these type of regulations.

Not even two weeks and already banned! Below are some videos of mine Annoying People…. being noisy…. The grand canyon would have been way cooler…

Rumor has it that the next executive action is to “temporarily” rename the USA to the The United Federally Represented Republic of Obama… The US is becoming a OBAMANATION…. I hear you can buy copies of the constitution printed on super soft and super absorbant eco friendly recyled toilet paper in the all National park gift shops and test it in the gender nuetral Public bathrooms… All rolls are Executive branch approved, Obama, Eric Holder and Director Jarvis have their own translations for the more progressive thinkers who want to know what the founding fathers “really” meant … Land of the “Free” ** The defintion of “Free” is subject to change decreed our supreme “leader”… oh wait we don’t have a leader… lets ask Putin what he thinks

Really, do you shoot down airplanes and helicopters too? Ever been to the mall? In just one stroll through the shopping mall, your picture is taken HUNDREDS of times. Do you shoot them too?

The only people talking about guns and drones are people talking about shooting them down. Since you’re a person threatening violence with a firearm, under most state laws, and federal law, you need to have your firearms confiscated and be forever banned from possessing one.

Remember, near the drone is a PERSON operating it. If you shoot at the drone you’re shooting at the person operating it too. Just your post alone is probably enough to warrant a visit from the state police, because after all, you just threatened, online, using your real name, to commit a violent felony with a firearm.

If only they had had this regulation in 1900, it would have prevented those terrorist Wright Bros. from inventing heavier-than-air flying machines. Nothing like closing the barn door after the livestock escapes. After their performance during the government shutdown, this just confirms that the National Park Police are a useless entity.

The whole of the US Government seems to be against drones for recreational as well as commercial use. People in general are not against drones. Everytime I see one at a festival or a park in Europe, people are waving up to them. People react almost the same way as when a low flying helicopter passes overhead. They wave up. There is a bigger problem with the confusion and banning or UAVs in general. It is pushing innovation and research overseas. Drone manufacturers receive feedback from its customers which allows them to improve their product. If the widespread use of drones is banned in the US, then the manufacturers will not benefit by having their research labs in the US. I think the US is falling behind the French and Chinese regarding Drone research and development with the Chinese having more drone patents than any other country.

The US is a very beautiful country and it will be a real shame not to see some of the best aerial filming of these beautiful National Parks. Great aerial videos of these National Parks will help the tourism industy immensely.